DUI Attorney Mark Matney - Matney Law PLLC - Newport News - Williamsburg

Mark Matney

DUI & Traffic Court Lawyer
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Dismissal of Brandishing a Firearm

Defending against a charge of brandishing a firearm requires carefully evaluating the language of the Virginia Code and comparing it to the facts and circumstances of the case.  The brandishing code section applies whenever someone points or handles a firearm in a manner that reasonably induces “fear in the mind of another.”  There is a exception for self-defense.  In our case, my client was charged with brandishing a firearm by the police officer who arrived and saw him pointing a gun at his friend.  At the trial, the friend was not called as a witness.  After cross-examining the police officer and questioning two neutral witnesses, it became clear that the person who the gun was pointed toward had been asked to leave the property twice and that one of the witnesses had actually escorted him from the property.  It was also evident that he supposed victim had continued to advance toward my client despite being told to stop and to leave the property.  The officer and the witnesses did not provide any statements that indicated that the gun had actually “induce[d] fear in the mind of another of being shot or injured.”  In fact, the continued advancing toward the weapon showed that he was not afraid.  Other factors that the judge considered were the intoxication of the supposed victim and that my client was the one who had called the police.  Brandishing is not to be taken lightly, but this charge can be successfully defended by analyzing the facts and challenging whether the officer or prosecutor has proven the elements set forth in the Virginia Code.

Virginia Code § 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.

A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.

Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

Mark Matney

DUI - DWI Lawyer
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I Welcome Your Comments

Is driving over 80 MPH still considered Reckless Driving by Speed in Virginia?

Driving Over 80 MPH
Posted by Mark Matney of Holcomb Law, PC Newport News, VA
www.matneylawpllc.com
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Yes and No. On July 1, 2020, Virginia changed the Reckless Driving statute to raise the presumptive speed for reckless driving from 80 mph to 85 mph regardless of the speed limit.  However, the legislature kept the language that speeding 20 mph over the limit is considered Reckless Driving (e.g., driving 55 mph or more in a 35 mph zone).  The result is that if you are driving at 85 mph or more, you can be charged with reckless driving even in a 70 mph zone.  However, you can also be charged with reckless driving if your speed is more than 20 mph over the limit no matter what the speed limit is.

Reckless Driving is a serious criminal charge.  It is a class 1 misdemeanor which means that there is the possibility of a jail sentence, a significant fine and even a license suspension. We would gladly help you achieve the best possible result for your situation.

The Code section for Reckless Driving by Speed is:  § 46.2-862. Exceeding speed limit.

A person is guilty of reckless driving who drives a motor vehicle on the highways in the Commonwealth (i) at a speed of 20 miles per hour or more in excess of the applicable maximum speed limit or (ii) in excess of 85 miles per hour regardless of the applicable maximum speed limit.

Submitted by attorney Abigail Hockett.

2 comments

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Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

Mark Matney

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Call Attorney Mark Matney at
(757) 703-4556

Expungements of Trespassing, Public Intoxication & Petit Larceny Charges.

Posted by Mark Matney
Attorney Mark Matney - Holcomb Law, PC Newport News VA
www.matneylawpllc.com

I recently obtained expungements for four clients with prior charges of trespassing, public intoxication, and petit larceny. Sometimes people ask why they should seek expungement when the charge was dismissed. When your criminal history is searched, everything you have ever been charged with appears in the record. It does not matter whether you were found guilty or not guilty - the fact of being charged will continue to appear. This means that you could have to explain the dismissed charge to a potential employer. An expungement removes dismissed charges from your criminal record and avoids the awkwardness of having to explain these charges to employers or others who are interested in your record.

Many employers believe that where there is smoke, there is fire. If they have to choose between a potential employee with a clear criminal history and someone who was charged with a misdemeanor, then they select the person whose record is clear.

To qualify for an expungement, the charge must have been dismissed. The dismissal can be accomplished by not guilty, nolle prosequi or other dismissal. However, dismissals after a first offender program or a finding that the evidence was sufficient are not eligible.

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Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

Mark Matney

DUI - DWI Lawyer
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Call Attorney Mark Matney at
(757) 703-4556

Not Guilty of DWI / DUI, 2nd Offense

Posted by Mark Matney
Attorney Mark Matney - Holcomb Law, PC Newport News VA
www.matneylawpllc.com

This month I helped a client charged with DWI 2nd offense and Refusal 2nd offense. To achieve a not guilty decision, we had to show that the evidence was not sufficient for the judge to find my client guilty beyond a reasonable doubt. In this case, my client made good decisions during his contact with the police that helped me win his trial.

The police approached my client due to an accident. He cooperated with the police, but refused to participate in any field sobriety tests and declined a handheld preliminary breath test (PBT). A driver is not required to complete these tests. He also refused to submit to the formal breath test on the Intoxilyzer EC/IR II at the police station. Refusing a breath test results in an additional charge of Refusal. However, it also avoids a presumption of being under the influence. Additionally, the lack of a blood alcohol level and field tests meant that the officer was limited to testifying about my client’s appearance. When combined with a detailed timeline of my client’s activities and a description of his medical issues, the judge concluded that there was a lack of evidence that my client was under the influence at the time of the driving.

The dismissal of the 2nd offense DWI avoided 20 days mandatory minimum jail, three years license suspension, $500 minimum fine and completion of ASAP. Although refusing the breath test helped him avoid the DWI conviction, it did result in a refusal conviction that he appealed.

 

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Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

Mark Matney

DUI - DWI Lawyer
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Call Attorney Mark Matney at
(757) 703-4556

What happens if the officer does not appear for court?

Posted by Mark Matney
Attorney Mark Matney - Holcomb Law, PC Newport News, VA
www.matneylawpllc.com

It depends. If the officer is on a list for an approved absence, then the judge will usually continue the case to the officer’s next available date. This applies to officers who are in training, called up for military duty, or sick.

However, sometimes a judge will dismiss a case even when the officer is on an approved absence list if the officer was not available for court previously. For example, in one Newport News case this month the judge dismissed the charge of reckless driving by speed, 56/35, when the officer was on sick leave for two separate court dates.
When police officers leave their police departments, their cases are usually dismissed. This week a Hampton officer’s departure resulted in the dismissal of Reckless Driving – Accident and a Newport News officer’s resignation resulted in the dismissal of Reckless Driving - Parking Lot.

What if the officer doesn't have the
calibration certificate for the radar or lidar?

Posted by Mark Matney
Attorney Mark Matney - Holcomb Law, PC Newport News VA
www.matneylawpllc.com

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The law enforcement officer must provide a certificate of accuracy that is dated within six months preceding the date the motorist was stopped. Otherwise, the speeding or reckless driving by speed may be dismissed. The officer is not required to show the certificate to the judge unless the motorist or his lawyer requests it.

I regularly review the law enforcement officer’s calibration certificates as part of representing my clients. The officers are professional and usually have their documents, but in the past two weeks two clients have benefitted from dismissals when officers did not having the necessary certificates. In one case, speeding 38/25 in Newport News, the officer did not have his lidar certificate. In the other case, speeding 45/30 in Hampton, the officer’s radar certificate was outdated.

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Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

Mark Matney

DUI - DWI Lawyer
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Call Attorney Mark Matney at
(757) 703-4556

Attorney Mark Matney - Holcomb Law, PC - Traffic Court Attorney - Newport News Virginia

Attorney Mark Matney - DUI Lawyers - Traffic Court Attorneys - Williamsburg, Newport News, Hampton, YorktownReckless Driving by Speed, 43 in 30

Posted by Mark Matney of Holcomb Law, PC Newport News VA
www.matneylawpllc.com
__________________________________

This morning my client’s speeding case was dismissed! The officer was operating stationary Lidar (laser) in a 35 mph zone just past the point where the speed limit changed from 35 mph to 30 mph.

When I asked the officer for the certification for his lidar equipment, I found that he did not have a certificate that covered the date when my client was stopped. The Virginia Code provides that “no calibration or testing of such device shall be valid for longer than six months” (Sec. 46.2-882). The officer’s certificate must be dated during the six months preceding the date of the stop. It cannot be dated after the stop or more than six months before the stop.

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Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

Mark Matney

DUI - DWI Lawyer
Learn More!

Call Attorney Mark Matney at
(757) 703-4556

Request An Appointment

Lawyer Mark Matney of Matney Law PLLC - Newport News Virginia - DUI and Traffic Court Lawyer

Mark Matney

DUI - DWI Lawyer
Learn More!

Call Attorney Mark Matney at
(757) 703-4556

Mark Matney will defend you in traffic court against DUI - DWI - Speeding TicketsReckless Driving by Speed, 95 in 60

Posted by Mark Matney of Holcomb Law, PC Newport News VA
www.matneylawpllc.com
__________________________________

 

Today in the General District Court my client was facing a charge of driving 35 mph over the speed limit. While we waited for our case to be called, we observed another person charged with the same speed. In that case, the judge sentenced the driver to a fine, license suspension, and an active jail sentence. On the Virginia Peninsula, judges consider jail beginning at 30 miles over the speed limit and at 90 mph regardless of the speed limit.

However, for my client, our preparations resulted in avoiding jail except for being held at the courthouse for about an hour. What was the difference between the two cases? Prior planning precludes poor performance! My client made a special effort to accomplish a standard driver improvement course, a reckless and aggressive driver education course, and a significant number of volunteer hours. My client’s preparation before court helped him avoid returning from out of town to serve time in jail.

Each case deserves special attention and a strategy that considers the unique combination of the person charged, the judge who will hear the case, the officer who brought the charge, and the charge itself.

Lawyer Mark Matney of Holcomb Law, PC - Newport News Virginia - DUI and Traffic Court Lawyer

We Welcome Your Comments

 

A Promise & A Testimony

Posted by Mark Matney of Holcomb Law, PC Newport News VA
www.matneylawpllc.com
__________________________________

A Promise & A Testimony

A promise: “Come near to God and He will come near to you.” James 4:8.

My testimony: I am a Christian who just happens to be practicing law. I hope my story will be an encouragement to you in this challenging and extraordinary time.

My journey of faith began in my childhood. As a child, I attended our neighborhood’s church where I participated in the choir and learned about the Bible through the Sunday School program. My father was not a Christian, but church was important to my mother.
By the time I reached high school, I knew a lot about church, the Bible and Jesus, but it was in a sheltered environment of our local church and neighborhood.

When I entered high school, I experienced several significant changes that left me vulnerable. Immediately before high school, my parents separated and I relocated from the home, church, neighbors and friends I had enjoyed from the age of two until the beginning of high school.

I ended up with a group of so-called friends who were pushing me toward drinking and drugs. I had to make a decision about what I really believed. Fortunately, when I prayed and asked God to guide me, I found that, “God demonstrates His own love toward us, in that while we were sinners Christ died for us” (Romans 5:8). Even when I was not pursuing God, he was pursuing me. God led me through a time of repentance and rededication that resulted in me putting my full faith in Jesus and accepting that he loves me and forgave me.

The result of entering into a relationship with Jesus is that I found the peace and purpose that I was missing as I floundered through high school. I now have hope and a secure future. I know that God has a plan and a purpose for my life and that I will live forever with Jesus in heaven after my physical body dies.

I would be glad to discuss my faith with you. Just contact me. I also share this simple statement of what the Bible teaches:

God’s plan—peace and life. God loves you and wants you to experience the peace and life He offers. The Bible says, “For God so loved the world that He gave His only begotten Son, that whoever believes in Him should not perish but have everlasting
life” (John 3:16, NKJV). He has a plan for you.

Our problem—separation from God. By nature, we are all separated from God. The Bible says, “For all have sinned and fall short of the glory of God” (Romans 3:23, NKJV). He is holy, but we are human and don’t measure up to His perfect standard. We are sinful, and “the wages of sin is death” (Romans 6:23, NKJV).

God’s remedy—the cross. God’s love bridges the separation between you and Him. When Jesus died on the cross and rose from the grave, He paid the penalty for our sins. The Bible says, “‘He himself bore our sins’ in his body on the cross, so that we might die to sins and live for righteousness; ‘by his wounds you have been healed’” (1 Peter 2:24, NIV).

Our response—receive Jesus. You cross the bridge into God’s family when you accept Christ’s free gift of salvation. The Bible says, “But to all who did receive him, who believed in his name, he gave the right to become children of God” (John 1:12).

To receive Jesus, a person needs to do four things:
• Admit that you are a sinner and you need the Savior.
• Be willing to turn from your sins and ask God to forgive you.
• Believe that Jesus died for you on the cross and rose from the grave.
• Invite Jesus to come in and control your life through the Holy Spirit. Romans 10:13 says, “Everyone who calls on the name of the Lord will be saved.”

Here’s a prayer you can pray to receive Jesus:
Dear God, I know that I am a sinner and separated from You. I want to turn from my sins and enter into relationship with You. Forgive me for my sins. I believe that Jesus is Your Son. I believe He died for my sins and that You raised Him from death to life. I want Jesus to come into my heart and I give Him control of my life. I want to trust Jesus as my Savior and follow Him as my Lord from this day forward. In Jesus’ Name, Amen.